Holding the power of the purse, the U.S. Congress is tasked with passing the National Defense Authorization Act funding the Department of Defense, the 2018 edition is expected to be somewhere around $700 billion. Since 1961 the NDAA has been passed every year making it a prime target for legislators to add pork-barrel spending projects, the House version this year includes creating a Space Corps that both the White House and AirForce oppose.

The Senate bill includes some ludicrous provisions that threaten intellectual property protections and national security that have so far flown under the radar. Congress should just say no! Intellectual property rights are not up for negotiation.

Now in conference, where normal rules don’t apply, a special group of legislators from both Chambers is tasked with harmonizing the differences between them. Property Rights Alliance signed on to a coalition letter addressed to conferees urging them to strike these sections out in order to protect U.S. copyright law, the Trade Secrets Act, and other intellectual property rights.

Section 881: Is more akin to the alleged Chinese forced technology transfer policies which President Trump has asked the United States Trade Representative to investigate. It expands the scope of what technical data should be turned over for procured software to include everything necessary to replicate it. Including “all source code, revision histories, build scripts,” and the list goes on. This violates U.S. copyright law and the Trade Secrets Act and has not been debated in the public.

Section 883-885: Requires the DoD to use an Obama era public works program: Office 18f. Specifically, it will require Secretary Mattis to identify floundering software projects (that are potentially proprietary) and send them to 18F to be “realigned.” The office, made of 200 techies is tasked with repairing, fixing and developing software for the government, unfunded, it must charge DoD for this mandated work. Historically, it is the private sector that performs more qualitative and cost-effective work. DoD should let bad projects fail, allow IP owners to bear the responsibility of their product’s success, and not be tasked with creating work for nondescript agencies.

Open-Source DoD Software?

In addition, Section 885 requires software acquired by 18F to be managed as open source software-- to release the source code in a public repository with a license that “provides the rights to use, study, reuse, modify, enhance, and distribute the software to anyone and for any purpose.” In an era where seemingly every bank, web service, credit rating agency, even government personnel files are hacked why would anyone want to make more software more vulnerable? Even school kids aren’t allowed to rely on Wikipedia, the most popular open-source website, why should the government have to?

Existing guidance by the Office of Management and Budget in 2004 required all federal software purchases to be technology neutral. There is no reason to change that policy using the NDAA to make open source the preferred software license for DoD. There needs to be much more debate, and a defense spending bill that must pass is not the place. Sections 881, 883, 884, 885, and 886 harm intellectual property rights and threaten national security. They are not in the House bill and should be easily removed.